Product Liability 2009 - Arnold & Porter LLP

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corresponding right to counsel in civil cases. There are, however, a
variety of sources of legal aid, both public and private to assist
indigent litigants in prosecuting their cases. A major source of such
legal aid comes from the various state bar organisations.
Additionally, attorneys are generally encouraged and expected to
provide a portion of their services pro bono, i.e., free of charge, to
indigent clients.
7.3 If so, are there any restrictions on the availability of public
funding?
Public funding is not available for civil litigation, but a number of
sources of legal aid exist to assist indigent civil litigants. Due to the
many varied sources of legal aid in the United States, it is not
possible to provide a comprehensive overview of restrictions
applicable to the provision of legal aid. Virtually all sources,
however, have specific income thresholds beyond which legal aid
will not be provided.
7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Contingency fees are allowed in the United States. Various
conditions and ethical considerations apply in each jurisdiction, but
most jurisdictions allow contingency fees of up to 30-40% of the
judgment awarded to a party, provided that the parties enter into a
fee arrangement in advance.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Expenses associated with bringing a lawsuit are often initially
funded by plaintiffs’ attorneys. If a recovery occurs, either through
settlement or judgment, then the expenses are usually subtracted
from the recovered amount. The exact details in which expenses
associated with bringing a lawsuit are handled is often dictated by
the parties’ fee arrangement.
8 Updates
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in the USA.
Federal pre-emption continues to be one of the primary developing
issues in the context of prescription drug and medical device
product liability litigation, since they are regulated by the FDA.
Within the last two years, the U.S. Supreme Court decided three
cases which address the issue of federal pre-emption. On February
20, 2008, the U.S. Supreme Court, in an 8-1 decision in Riegel v.
Medtronic, Inc., held that state law claims against medical devices
requiring FDA pre-market approval are pre-empted. 128 S.Ct. 999
(2008). This decision hinted at the possibility that the Supreme
Court might subsequently adopt federal pre-emption in a broader
context.
Two weeks after the Riegel decision, the Supreme Court handed
down a 4-4 split decision in Warner-Lambert Co. v. Kent, thereby
upholding the Second Circuit ruling that allowed pharmaceutical
cases to proceed under a Michigan statute requiring plaintiffs to
prove the company misled the FDA. 128 S.Ct. 1168 (2008). Even
though the split-decision has no precedential effect, it came as a
surprise to some who thought that Kent would continue to broaden
the scope of pre-emption demonstrated by Riegel.
The Supreme Court recently decided Wyeth v. Levine, which raised
the issue of pre-emption as it relates to prescription drugs. On
March 4, 2009, the Supreme Court, in a 6-3 decision, held that that
federal law did not pre-empt plaintiff’s state-law claims based on
the facts of the case. 555 U.S. ___ (2009). The Court concluded
that “it is not impossible for Wyeth to comply with its state and
federal law obligations and that Levine’s common-law claims do
not stand as an obstacle to the accomplishment of Congress’
purposes in the FDCA”. Id.
Shortly after the Levine ruling, on March 9, 2009, the Supreme
Court granted certiorari in two Third Circuit cases involving preemption,
Pa. Employees Benefit Trust Fund v. Zeneca, Inc. and
Colacicco v. Apotex, Inc. The Supreme Court vacated the
judgments in both cases and remanded them for further
consideration in light of the Levine ruling. In the months and years
to come, the reach of the Levine decision will continue to be
debated.
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